Rall v Hume

Covert video footage is a document for disclosure purposes. Once properly disclosed and unchallenged as to authenticity, it is ordinarily available for use in cross-examination without separate permission to adduce it.

A defendant intending to rely on such footage must raise the matter at the first practicable opportunity so that the court can allocate sufficient trial time and make efficient directions. Where the footage may substantially undermine a personal injury claim, the usual starting point favours its use unless this would produce trial by ambush. Procedural delay does not invariably justify total exclusion. The court should consider proportionate controls, including advance identification of excerpts and limits on their duration and the resulting cross-examination.

The claimant obtained judgment for damages to be assessed following a road accident for which liability was admitted. She alleged continuing physical and psychological symptoms, restricted driving and a permanent need for domestic assistance. The defendant disclosed two covert videos which, he contended, showed a level of activity inconsistent with her claim.

District Judge Fuller refused to permit reliance on the videos because the application was late and their use would jeopardise the listed four-hour trial. His Honour Judge Thompson dismissed the defendant's appeal. The Court of Appeal granted permission for a second appeal because neither the Civil Procedure Rules 1998 nor the applicable practice directions specifically addressed the use of video footage to cross-examine a personal injury claimant. The central issue was whether lateness justified excluding all use of the disclosed footage or whether tailored case-management directions could protect both parties.

1. Disposition. The appeal was formally dismissed, with Potter LJ giving the judgment and Sedley LJ agreeing. Nevertheless, the court directed that the existing trial date should stand and permitted the defendant to cross-examine on identified footage totalling no more than 20 minutes. The defendant was ordered to pay the appeal costs because his solicitors' delay had made the appeal necessary.

2. A video film is a document within rule 31.4 of the Civil Procedure Rules 1998. A defendant intending to use it to attack a personal injury claim is subject to the disclosure and inspection regime. Where disclosure has been made and authenticity has not been challenged, the footage is prima facie available for cross-examination of the claimant and medical witnesses. The lower courts had mistakenly approached the matter as though the defendant needed permission to adduce the entire videos as evidence.

3. Once a defendant decides to rely on video footage, the proposal must be raised with the managing judge at the first practicable opportunity. Showing footage requires equipment, consumes trial time and affects listing. Prompt notification follows from the parties' duty to assist the court in furthering the overriding objective and from the requirements governing timely applications.

4. The starting point is that footage said to undermine a claimant's case sufficiently to reduce damages substantially should usually be available for cross-examination, provided its use does not amount to trial by ambush. This was not an ambush case. Disclosure had not been deliberately delayed to obtain surprise, and the claimant had viewed and commented on the footage.

5. The solicitors should have raised their intended use of the footage at the reinstatement hearing. That error did not justify excluding every opportunity for cross-examination. Under rule 32.1, the court could control the evidence, require advance identification of selected passages and limit the duration of cross-examination. Those measures could preserve the trial date, minimise the claimant's anxiety and avoid unnecessary expert costs.

6. The defendant abandoned reliance on footage taken inside the claimant's home or the nursery. The permitted excerpts had to be identified to the claimant's solicitors by the stated deadline and viewed by the claimant and her medical experts before trial.

1. Court of Appeal (Civil Division): Formally dismissed the defendant's second appeal, but directed that the trial date remain and permitted limited cross-examination using advance-identified video excerpts. The defendant was ordered to pay the appeal costs.

2. Aldershot County Court, His Honour Judge Thompson: On 3 January 2001 dismissed the defendant's appeal, holding that the application to rely on the videos was made too late.

3. Aldershot County Court, District Judge Fuller: On 13 December 2000 refused the defendant's case-management application to use the videos because of delay, the four-hour trial estimate and the inconvenience and anxiety that postponement or hurried preparation would cause the claimant.